The plaintiff was an employee of WHM working at Exxon's facility in Baytown. The plaintiff took a random drug test administered by a third party contractor (DISA) and was told that he had failed. He then arranged for a second drug test on his own, and he passed that test. Nonetheless, he was discharged for failing a drug test.

He sued WHM, Exxon, DISA, and other parties under a laundry list of legal claims. The trial court dismissed or granted summary judgment with respect to all of his claims, and the Court of Appeals affirmed with respect to most of the claims.

The most interesting holding involved the plaintiff's "pattern or practice" claim. The plaintiff alleged:

Plaintiff Gilberto Rincones asserts and intends to prove that the treatment received by him from the Defendants WHM and EXXON was part of a pattern and practice engaged in by the Defendant employers and their employees towards several individuals similarly situated. This unwritten plan or scheme was to discriminate against, retaliate against, discharge or take some adverse employment action against Plaintiff and other similarly situated Hispanics of Mexican heritage/decent, thereby creating a hostile work environment.

However, his charge of discrimination did not mention a pattern or practice, but instead alleged individual discrimination:

I am a 37 year old Hispanic male who worked for WHM since 2007. While working with WHM, I was assigned to work for Exxon, under their direction and control as a Technician. I was a loyal, hardworking, and dedicated employee at all times. As a requirement to work at Exxon, I was required to take a drug test. On April 10, 2008, I was given a random drug test by Turn Around Incorporated, along with other non-Hispanic employees. Thereafter, I was terminated due to allegedly being tested positive for drug use, even though I told my employers that the test was mixed up or false. On April 14, 2008, I went to a lab where I paid for a test to be done, with my own money, which was negative, I provided this information to my employers and complained that other non Hispanic employees were treated differently because they were retested or allowed to prove the test was wrong. However, I was refused my position. I feel I am being discriminated against because I am Hispanic.

The defendants filed a plea to the jurisdiction, claiming that the plaintiff had failed to exhaust his administrative remedies. The trial court sustained the plea, but the Court of Appeals reversed:

As set forth above, a lawsuit under the TCHRA "is limited to the complaints made in the discrimination charge and factually related claims that could reasonably be expected to grow out of the Commission’s investigation of the charge." In this case, we conclude that appellant’s claims for pattern and practice discrimination are factually related to his claims for discrimination based on race and national origin. In his charge, appellant alleged that non-Hispanic employees were being treated differently. This allegation suggests a group-wide discriminatory practice in which non-Hispanic employees were treated more favorably than Hispanic employees. Therefore, we conclude that the trial court has jurisdiction to hear appellant’s pattern and practice discrimination claims because they are "factually related claims that could reasonably be expected to grow out of the Commission’s investigation of the charge."

This is yet another case in which a defendant has urged a court to adopt a restrictive construction of a plaintiff's charge of discrimination. Like most courts, the Corpus Christi Court of Appeals declined the invitation. Charges of discrimination are filed by claimants who are not represented by counsel and who are assisted only by EEOC personnel. While employers would like for the courts to treat charges of discrimination as legal pleadings, the courts have generally declined to do so.

Nonetheless, employees and their counsel should be sure to write their charges of discrimination as broadly as possible. The plaintiff in this case survived only because the charge included some broader language about the favorable treatment given to non-Hispanics. If the language of the charge had been just a little bit more narrow, the result might have been different.

Law Offices of David C. Holmes is located in Houston, TX and serves clients in and around Tomball, Houston, Fort Bend County, Harris County and Montgomery County.

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